Sreemutty Mohun Bibi vs Saral Chand Mitter

Jenkins, J.—On the 14th November 1893 the Defendant executed in favour of Luckhi Narain Singh, the original Plaintiff in the suit, a mortgage of certain immovable properties which had devolved on the Defendant under the Will of his grandfather; and on the 20th of February 1895 this was instituted, instituted, whereby it is prayed :-

(a) That the Defendant may be decreed by this Honorable Court to pay to the Plaintiff the sum of Rs. 5,000, together with interest due thereon, and the costs of this suit on some day, to be fixed by this Honorable Court, and that in default thereof the right to redeem the said mortgaged premises may he foreclosed.

(b) That the said premises may be sold and the sale-proceeds applied in and towards the repayment of the said sum of Rs. 5,000 and the interest thereon and the costs of this suit.

(c) That if the sale-proceeds be not sufficient for the payment in full of the said amounts, the said Defendant be decreed and ordered to pay to the Plaintiff the amount of such deficiency.

(d) That for such purpose such direction ns may be given and such accounts may be taken as to this Honorable Court may seem necessary.

(e) For such further and other relief as the nature of the case may require.

Luckhi Narain having died, the Plaintiff, Sreemutty Mohun Bibi, as his administratrix, was substituted in his place.

On the 27th March 1895 Kali Prasanna Ghose was appointed guardian ad litem on the allegation that the Defendant was an infant, and on the 17th of April 1895 he put in a writer-statement, pleading infancy and submitting the matter to the Court.

This was the state of the record when the case came on for trial. On that occasion, however, it was stated that the Defendant had reached the age of 21, and it was arranged that the guardian should be discharged. Thereupon, it was asked by the Plaintiff whether the Defendant intended to affirm his mortgage, and to this there was a reply in the negative.

On this the Plaintiff contended that it was not open to the Defendant to rely on his infancy on the ground that the mortgagee had been induced by his fraud, and that, at any rate, the rescission gave rise to such rights as are indicated by sees. 64 and 65 of the Indian Contract Act. It was further pointed out that until then there bad been no avoidance of the mortgage, and leave was asked to file a supplemental written statement. The Defendant objected, but I acceded to the application. In coming to this conclusion, I was influenced by the fact that to refuse it would simply necessitate the institution of a fresh action without any advantage to the Defendant, as I have given him all the time he required to meet the allegations of fraud, and next because this supplemental written statement was, so far as the Plaintiff sought to rest on his mortgage, really in the nature of a replication, seeing that there had been no prior avoidance of the mortgage.

In this state of things the following issues were raised :-

(1) Was the mortgage deed executed by the Defendant ?

(2) Was the Defendant an infant at the date thereof?

(3) Was the Plaintiff induced to lend the money under the circumstances alleged in their written-statement?

(4) Apart from the question of fraud are the Plaintiffs entitled to recover under the sections of the Contract Act (64 and 65)?

There really can be no question that the Defendant executed the mortgage, nor have I any doubt that at its date the Defendant was under the age of 18, and consequently a minor. I accordingly decide the first and second issues in the affirmative. In deciding the 3rd issue, I have to deal with a conflict of evidence of a most direct character going to the very heart of the matter in dispute.

There are, however, certain matters which are practically beyond question, and it will be best to state them so as to see which of the conflicting cases best accords with the established facts.

Those facts I take shortly to be as follows :-

Some days prior to the mortgage arrangements were made for an advance by Luckhi Narain Singh to the Defendant on the security of the property which has been actually charged. In the course of the negotiations there were produced to Luckhi Narain the death-certificate and affidavit which are alleged to have contained the false representation. The death-certificate and affidavit were afterwards placed before Ashutose Bose, a pleader of the Alipur Court, by Luckhi Narain, who requested him to advise whether having regard to them money could be advanced.

Subsequently, Ashutose Bose, in accordance with instructions, prepared a draft and engrossed the mortgage mentioned in the plaint. On the 14th of November 1893 Luckhi Narain, accompanied by Ashutose and Ganpat, met the Defendant and Hari Charan Milter at the Sealdah Registry; the Defendant signed the mortgage, and the Defendant, Luckhi, Ashutose and Ganpat went upstairs and presented the deed for registration.

The Registrar, who was a friend of the Defendant''s family, doubted whether the Defendant was a major, nor were his doubts removed by the production of the affidavit of Achinta Nath Biswas; so the parties went downstairs, and Hari, Luckhi and Ganpat went away in a gharry, and after the space of an hour brought back the death-certificate.

The parties once more went before the Registrar, the certificate was handed to him, and he apparently being satisfied as to the Defendant''s majority registered the deed. On this 5,000 rupees in notes was paid into the Defendant''s hands, and the parties again went downstairs, leaving the death certificate and the affidavit with the Registrar.

Notes to the amount of Rs. 200 were handed to Ashu, and then Luckhi Narain and Ashutose left in a gharry leaving the others there.

A few days after Saral went to the Registry Office and obtained the affidavit that had been left there. The facts, which 1 have so far stated, are beyond dispute, and it will now be convenient to examine shortly the several versions of the Plaintiff and the Defendant as to what occurred over and above this. According to Ganpat''s evidence, Saral himself took part in the negotiations for a loan and himself produced to the Plaintiff the certificate and affidavit.

After stating that Saral came with Suren Das to Luckhi Narain 15 or 20 days prior to the mortgage, Ganpat proceeds as follows :-"Suren said to Luckhi Narain Singh in Defendant''s presence.'' ''Here is Saral Babu : will you advance him Rs. 2,000 on promissory note, which you have promised to advance.'' Upon that Luckhi Narain Singh said: ''The other day you told me something about his age; where are the affidavit and certificate of death of his father.'' Saral thereupon produced two pieces of paper from his pocket and handed them over to Luckhi Narain Singh, who read them and handed them over to me." The witness then identified these two documents as being the death-certificate and the affidavit.

Ganpat further describes how the two came again the next day, and that it was ultimately arranged that Rs. 5,000 should be advanced on mortgage. After this, according to Ganpat, the Defendant obtained a return of the death-certificate and affidavit on his furnishing the copies which have been produced here. Ganpat beyond this connects Saral with the transaction before its completion by stating that he handed to him a draft of the mortgage.

I now pass to the Plaintiff''s version of what happened at the Sealdah Office.

According to it the Defendant was present in the Registry, and on the Registrar Hem Chunder expressing doubts as to his majority, produced the affidavit to the Registrar.

Babu Hem Chunder being still in doubt, Hari Mitter was sent by the Defendant to get the death-certificate, and for that purpose went away with Luckhi Narain Singh and Ganpat, dropped them at their house, went on and brought back the certificate, picking up Luckhi Narain and Ganpat on the way. Then, it is said, that it was on production of the certificate by the Defendant to Hem Chunder that the deed was registered, and the Rs. 5,000 paid. It is admitted that after leaving the Registrar''s room, notes to the amount of Rs. 200 were handed to Ashu, but it is sworn that this was to discharge the expenses in connection with the transaction and Ashutose''s remuneration, amounting in all to Rs. 140, and that Rs. 60 was then and there repaid to the Defendant. Beyond this it is absolutely denied that any payment was made by Saral.

The version put forward on the part of the defence is widely different. Saral swears that he knew nothing about the mortgage till the day before it was executed; that he took no part in the negotiations for the loan, and did not produce the certificate and affidavit, and he further disclaims prior possession of them or even knowledge of their existence.

He further swears that he did not know, though he was present, why Hem Chunder declined ''at first to register the document; that he did not produce either the affidavit or certificate to Hem Chunder, that he did not know the nature of those documents when they were produced, or what the affidavit was when he went to the office afterwards and took it away, and he denies that he sent Hari Mitter for the certificate.

On the other hand, he said that after leaving the Registry, he paid Rs. 2,000 to Luckhi Narain, Rs. 1,100 to Ganpat, and did not receive Rs. 60 Or any other sum back in respect of the Rs. 200 paid to Ashu. Then the question comes which version am I to adopt. Now I absolutely decline to believe Saral''s disavowal of all connection with the certificate and affidavit. In the first place it is proved to my satisfaction that documents undistinguishable from these had been previously shewn to Preonath Shastri on the occasion of Saral''s obtaining a loan from him. Then 1 find it impossible to believe that the Defendant did not know for what purpose those documents were produced to Hem Chunder.

There can be no question that Hem Chunder did express his doubts as to Saral''s age, and when it is borne in mind that he was a friend of Saral''s family and was well acquainted with Saral himself, it is beyond my capacity to believe that Hem Chunder should not have said a word to Saral on the point, and that Saral remained in absolute ignorance of that which admittedly was going on in his presence.

I find it equally difficult to accept his account of what happened when the affidavit was taken away from the Registry.

He states that in consequence of Ganpat''s persuasion, he accompanied him to get the affidavit, still he declares that though it was he who went to the Registrar and asked for the document, he did not know what it was, that he only described it to the Registrar as "the first document which was produced to you in connection with the loan," that the Registrar told the clerk to get it, that it was handed to him folded, and that he did not open it.

The purpose of this evidence is to support the Defendant''s theory of his ignorance and free from guile, but when I consider the improbability of the tale and the fact that during the cross-examination of Ganpat no suggestion was made of his having accompanied Saral on the occasion when the affidavit was taken away, I do not hesitate to say that the Defendant''s evidence on this point is undeserving of credit.

The conclusion to which I come is that the Defendant was perfectly well aware of the purport of these documents and the purpose to which they were put in connection with the transaction. It is the Defendant''s case, that he had nothing to do with the case, and that Hari Mitter acted for him. Vet he does not call Hari as a witness, though he is a friend of the Defendant''s, and was in Court during the trial.

The evidence appears to me to demand the conclusion that Saral took part in the negotiations for the loan, and that he used the death-certificate and affidavit fraudulently, being well aware of their falsity for the purpose of inducing Luckhi Narain to believe that he, Saral, had attained his majority, and so of procuring from him the advance which was made.

After the best consideration I have been able to give, I further come to the conclusion that Luckhi Narain was deceived into making the loan by the Defendant''s fraudulent misrepresentation.

In arriving at this conclusion, 1 have not overlooked the arguments based on the rate of interest and on the assertion that Luckhi Narain is a money-lender. But I cannot find in those circumstances anything to justify me in coming to the conclusion that the Defendant''s fraud had not its intended and natural result on Luckhi Narain''s mind.

It has also been a prominent point in the Defendant''s argument in this connection that the advance was made on a first class security, but I am bound to disregard it, as there is not a little of evidence in its support.

As bearing to a certain extent on this part of the case, I will here deal with the Defendant''s statement that he only got Rs. 1,700. The balance of Rs. 3,300 the Defendant accounts for as follows :-

He says Rs. 2,000 was paid to Luckhi Narain; but as to the remaining Rs. 1,300 there has been a departure from the original suggestion.

At first it was suggested that Rs. 300 was paid to Ashu, which would have left a balance of Rs. 1,000 for Ganpat; later however, the Rs. 300 dropped to Rs. 200 with a corresponding rise in the amount paid to Ganpat, though Sital, who was called by the Defendant, adhered to the original figure of Rs. 1,000, his evidence in this respect being consistent with the earlier rather than with the later account suggested by the Defendant. Now as to the Rs. 2,000, it is sworn by Saral that he paid that amount to Luckhi Narain, and Sital''s testimony is to the same effect.

On the other hand Ganpat and Ashu, who were both there and must have seen the payment, if made, deny that it ever was made. As to the Rs. 1,1000, Ganpat swears it was not paid, the Defendant declares that it was; while, according to Sital, it was Rs. 1,000 that was paid to Ganpat. Both the Defendant and Sital agree in stating that Ganpat went in a ghari with them from the Registry to Lal Bazar, where change was obtained.

This account naturally suggested the question why was it necessary to take Ganpat to Lal Bazir for the purpose of changing the notes seeing that even after the alleged payments to Luckhi Narain and Ashu there were notes to pay the sum Ganpat is said to have received whether it was Rs. 1,100 or Rs. 1,000.

Saral''s explanation is that Ganpat was paid Rs. 1,000 when he got into the ghari; but as he was to pay Sital Rs. 25 and the coachman Rs. 10, Sital suggested that the Rs. 100 should be kept till the change was got. Sital, on the other hand, says that before the ghari was driven away, no money was given to Ganpat and that the notes were given to Ganpat at Lal Bazar. While Ganpat was in the box for some reason or other, doubtless a very good one, no suggestion was made to him in cross-examination that he had gone to Lal Bazar, and it is a curious fact that though Saral says that he informed his father-in-law of all this before he put in his written-statement as guardian ad litem, still there is not a suggestion in the written-statement of this alleged iniquitous conduct on the part of Ganpat and Luckhi Narain.

Mr. Hyde says that it was unnecessary to do more than plead infancy, and that is the explanation he gives.

I do not for a moment suggest that the silence of the written-statement is in any sense conclusive, still I think it is a factor to which one may have regard in determining which version should be accepted in this conflict of testimony.

Apart, however, from this, I certainly would place credence in the testimony of Ganpat and Ashu rather than of Saral and Sital. The last-named struck me as a most unsatisfactory witness, and when I bear in mind the accounts he gave of how Ganpat had promised him the Rs. 25, and his mode of giving evidence, I am able to place little, if any, reliance on his statements.

While as to Saral, not only did he, in my opinion, practise a deliberate fraud on Luckhi Narain in the mode I have already indicated, but he has come here and given an absolutely false account of the part he took in the whole transaction. In a conflict of testimony he is not a witness on whom I would rely, and I decline to accept his account of what occurred, I accordingly hold that the Rs. 2,000 and 1,100 were not paid as Saral has suggested, and further that the Rs. 60 was paid back. So much for the facts of the case. I next have to consider what result should follow from those facts. On the part of the Defendant, it is contended that notwithstanding the Defendant''s fraud, infancy is a complete answer both to the claim for personal payment and also to the relief by foreclosure or sale on the mortgage. In support of this contention reliance is placed on Dhan Mull v. Ram Chandra Ghose (r), a decision of the Appellate Court, by which, of course, I am bound.

It has not been suggested that in relation to this point the Indian differs from the English law, and it is perfectly obvious that in England infancy affords a complete answer to that which before the Judicature Acts would have been called an action at law on the contract, and it is equally clear that a decree for personal payment on the contract, expressed or implied, in a mortgage could not be made against an infant, however fraudulent he might be. The liability of a fraudulent infant to a decree for sale or foreclosure is, however, a perfectly different thing, and it is necessary to examine the case of Dhan Mull v. Ram Chandra Ghose I. L. R. 24 Cal. 265 to see whether the learned Judges in that case were dealing with anything more than the right to a decree for personal payment against a fraudulent infant.

From the report of the case it appears that this was a suit brought to recover the sum of Rs. 13,000 and interest due on a mortgage executed by the Defendant on the 26th March 1886. The Plaintiff alleged that the Defendant at the time of execution represented himself to be of full age, and thereby induced the Plaintiff to advance the mortgage-money, and he contended that, in the event of the Defendant establishing that he was a minor at the date of the mortgage, then his representations amounted to a fraud, and were willfully made with a view to deceive the Plaintiff, and that the Plaintiff should, in any event, be held entitled to recover the money. The prayer of the plaint was for the usual mortgage-decree and for a money-decree. The Defendant pleaded minority, and denied the alleged fraudulent representation.

The case was heard before Mr. Justice Norris, who found that the plea of minority was proved, but that the Defendant falsely pretended, and allowed other persons in his presence and on his behalf to state to the Plaintiff that he was of full age; that such statements were false to the knowledge of the Defendant, and operated upon the Plaintiff''s mind, so as to induce him to advance the money. It was admitted at the Bar that if the plea of minority was established, the Plaintiff could not be entitled to a mortgage-decree, but it was argued that if the case of false representations was made out, he was entitled to a money-decree.

The learned Judge dismissed the suit and from that dismissal there was an appeal, which was heard and decided by the Chief Justice Sir Comer Petheram, Mr. Justice Prinsep and Mr. Justice Pigot, who affirmed the decision of Mr. Justice Norris.

Now, there can be no doubt that the facts of that case must be taken for all purpose to be the same as those of the present, but that does not necessarily make it conclusive; for it is clear that a case is not a precedent for any proposition that was neither consciously nor unconsciously in the mind of the Court.

Now, according to the report of the case, it was admitted at the hearing before; Mr. Justice Norris, that if the plea of minority was established, the Plaintiff could not be entitled to a mortgage-decree. If that be so, it would be reasonable to suppose that both in the Court of first instance and the Appellate Court the only point that was discussed and made matter of actual decision was whether the Plaintiff could get a money-decree in spite of the plea of infancy, seeing that the advance had beep procured by the infant''s fraud.

A glance at the cases quoted and a moment''s consideration of the cases left unquoted distinctly bear out the view that the argument of counsel and the deliberation and decision of the Courts were limited in the manner I have indicated. This too is apparent from the judgments that were delivered; for instance, the learned Chief Justice says :- "No case has been cited before us, nor are we aware of the existence of any, in which a person has been held personally liable to pay a debt contracted by him during his infancy on the ground that he obtained the credit by fraudulent misrepresentation as to his age.

Mr. Justice Prinsep adopts the reasons and conclusions of the Chief Justice. Then, if one turns to the judgment of Mr. Justice Pigot, the same thing appears. He says :-" I think it is clearly established that the Defendant was under age when he entered into the contract.

Then later, after stating that suit must fail, he proceeds :-

Assuming it to be framed in tort, an infant, as Sir F. Pollock accurately says, could not be made liable for what was in truth a breach of contract by framing the action ex delicto. You cannot convert a contract into a tort to enable you to sue an infant." If any doubt were left after reading this passage, it is removed by what appears in the concluding part of the judgment where the learned Judge says :-" If we as a Court of Equity as well as a Court of law, were to allow the Plaintiff to recover in this suit, it would amount to restraining a Defendant from setting up the plea of infancy in an action on contract by reason of his having made a fraudulent misrepresentation dans locum contractui, and in no case has this ever been done.

It appears to me clear that the learned Judges were simply considering the Defendant''s personal liability to a money-decree, that being the sole question with which they were invited to deal. The high respect I entertain for the learned Judges who decided the case of Dhan Mull v. Ram Chandra Ghose I. L. R. 24 Cal. 265 wholly precludes me from supposing that they ever intended to deal with the Plaintiffs right to foreclosure or sale by virtue of his mortgage, a point on which there has been an undeviating course of decision from the time of Lord Cowper down to the present day and a point which has been familiarized by the inclusion of Savage v. Foster 2 Wh. & Tud. L. C. 6th Ed. 678. I refer to those decisions as being authoritative on this point, as it is apparent from the very case of Dhan Mull v. Ram Chandra Ghose I. L. R. 24 Cal. 265, that the point is one which falls to be determined by this Court administering principles of equity in accordance with the decisions of English Courts.

No doubt the report of Dhan Mulls. Ram Chandra Ghose I. L. R. 24 Cal. 265 records counsel''s admission that if the plea of minority were established, the Plaintiff could not be entitled to a mortgage-decree.

It may be that there was some special circumstance in the case that demanded such an admission, but it is obvious that however that may be, it has no binding force, and in my opinion the Plaintiff''s right to a mortgage decree is res Integra, so far as that case is concerned.

I have, therefore, to determine whether the Defendant can rely on his infancy to the Plaintiffs prayer for a mortgage-decree.

I was in the first place referred by the Plaintiff to the recent case of Gonesh Lal v. Bapu I. L. R. 21 Bom. 198, on the authority of which it was contended that the Defendant would be bound apart from fraud by virtue of sec. 115 of the Evidence Act. As, however, I find that there has been fraud, it is unnecessary for me to consider whether the principle there enunciated would govern this case.

There are, however, as I have already mentioned, a number of English cases, which clearly establish that in a Court of Equity the disability of a party whether arising from infancy or coverture cannot be successfully used in defence of fraud, so that if the rule of English Equity applies, the Defendant cannot avail himself of the plea of infancy. It is unnecessary to do more than refer to a few of the better known of these cases as Watts v. Cresswell 9 Vin. Ab. 414, decided by Lord Cowper, who held the great seat from 1714 to 1718; Savage v. Foster 2 Wh. & Tud. L. C. 6th Ed. 678; Teynham v. Webb 2 Vesey Sr. 198, decided by Lord Hardwicke in 1750; Evans v. Bicknell 6 Vesey 181, decided by Lord Eldon in 1801; Cory v. Gertcken 2 Maddock 40; Vaughan v. Vanderstegen 2 Drew. 363; Dames v. Hodgson 25 Beav. 187; Lush''s Trust L. R. 4 Ch. App. 591; CAHILL v. Cahill L. R. 8 App. Cas. 437, (per Lord Blackburn) from which it is apparent that the principle is one which has prevailed for 180 years, and has met with the approval of the most eminent English Judges. It further has the support of so eminent a text-writer as Lord St. Leonards (3 Sugden, Vendors and Purchaser, 428). Nor is the rule one peculiar to the English Courts for a reference to Story and Kent will show that it is one recognized and acted on by the Courts of the United States. It is therefore fair to take the rule as an expression of that which is required by the principles of equity, justice and good conscience, and so a rule which should govern the decisions of this Court. It may be said, however, that the special circumstances of this case forbid the invocation of the rule, and doubtless it is to that end that it has been more than once repeated in the course of the argument that Luckhi Narain was a money-lender, and the Defendant an unfortunate young man entrapped into the transaction.

I am at all times inclined to regard with suspicion this class of argument.

Even a money-lender, if such this Luckhi Narain was, is not beyond the pale of the law, and even in regard to him the justice of his claim must be judged by the evidence given in the case in which that claim is put forward, and not by any general appeal to the iniquities, real or imaginary, of those who follow his calling. The Evidence Act prescribes that the judgment of the Court must be based upon facts declared by the Act to be relevant and duly proved, and it would be intolerable that the Court should decide rights upon suspicions unsupported by testimony.

Then if the conduct and behaviour of the Defendant is a matter for consideration, 1 fear it would be impossible for me to view him in the favourable light in which he has been pointed.

He might perhaps find apologists for his youthful extravagances and vices, possibly even for the fraud by which he secured the loan; but I think it would be difficult anywhere to find an excuse for his attempt to escape from the consequences of the fraud by the version which he has given in this Court of his conduct, a version which I have been wholly unable to accept. Therefore I confess that the Defendant does not appear to me to be a fitting object of that sympathy which I have been invited to extend to him.

On the contrary, I see no reason for withholding the application of the rule of equity by reason of those personal matters to which my attention has been called. There remains, however, another, a point taken on the part of the Defendant which requires notice.

It is said that the result of the written-statement is to convert the action from one on contract into one on tort based on deceit, and that the statute of limitation would afford a complete answer to action based on deceit. To the argument so stated there would be the obvious answer that it is a misconception to treat the action as one in tort, for it is not and does not purport to be such.

The Plaintiff''s right to succeed, notwithstanding the Defendant''s infancy, arises from the applicability of a principle of equity which treats fraud as a bar to the plea of disability. The precise position was this. The effect of the infancy was that the mortgage was voidable, not void, for that is the result of the decisions of this Court by which I clearly am bound whatever my own views may be. Accepting this as the law, the infant''s right to elect whether he should affirm or repudiate the mortgage remained open until he attained his majority, and in this particular case it was not until after the infant attained his majority, which happened in the month of June, that the Plaintiff could have known whether the Defendant would, by his repudiation, render reliance on his fraud obligatory on the Plaintiff. I may also further point out that even in the written-statement there is merely a plea of infancy and a submission to the protection of the Court, and no allegation even of such a provisional repudiation as is open to an infant in relation to a voidable transaction.

But apart from this, the position is very clearly expressed by Lord Justice Turner in Nelson v. Stacker 4 DeG. & J. 458, where he indicates the true question is whether the false representation is such a fraud as will take away the privilege of infancy.

It seems to me, therefore, that the answer to the plea of infancy could properly be introduced under the circumstances of this case by way of replication to use the phraseology of English pleading as the Plaintiff was not bound to assume in his plaint that it would be necessary for him to rely on the fraud of the infant. In any case I do not think that art. 95 of the Limitation Act is on the facts of this case any answer to the Plaintiff''s claim.

Under the circumstances, therefore, I hold the Plaintiff is entitled to succeed, but while 1 give her the benefit of the principles of equity, she must take her remedy subject to the qualification those principles impose. In the first place I will not allow any interest. Then, as I indicated in the course of the argument, I am not inclined to charge the infant with remuneration paid to Ashutose Bose, but as it is not char what part of the Rs. 140 was applied in payment of the expenses and as the cost of an enquiry on the point, would be disproportionate to the result, the (sic) plan will be to disallow the whole of the Rs. 140. I understand the Plaintiff is willing to accede to this course. The mortgaged property, therefore, will be a security for the principal advanced after deducting the Rs. 140 and costs, and there will be an account on that footing. There will therefore be the usual mortgage-decree with the qualification that the Plaintiff will not he entitled to recover otherwise than out of the mortgaged property. Costs on scale No. 2 including reserved costs.